Cohabitation Agreements and Declaration of Trust Solicitors, London
Cohabitees are the fastest growing family type in the UK, having more than doubled from 1.5 million families in 1996 to 3.3 million families in 2017. However, despite the number of people choosing to live together outside of marriage or a civil partnership, cohabitees enjoy very little protection under English law.
Our family law team, led by Shabana Sultana can provide sharp, pragmatic, quality legal advice and representation on your rights if your cohabitation relationship breaks up. In addition, we will draft a Cohabitation Agreement which ensures your best interests are protected should your relationship breakdown.
Contact our Cohabitation Agreements Solicitors in London
The right solicitor changes everything. Anglo Law Solicitors provides expert legal advice on Cohabitation Agreements.
Speak directly to a family solicitor now on 020 3741 9583 or complete our online contact form for your free consultation. For evening and weekend assistance, please call our family law solicitors on 07749 448362.
Anglo law solicitors serve client across the following areas:
The City of London, Westminster, Kensington & Chelsea, Southwark, Bishopsgate, Billingsgate, Canary Wharf, Spitalfields, Aldgate, Bethnal Green, Whitechapel, Tower Hamlets, Redbridge, Kent, Tunbridge Wells, West Malling, Chafford Hundred, Chelmsford, Brentwood, Epping & Loughton
It is 2019, surely couples who live together have some legal rights?
You would think so, but sadly no. Although cohabitees have enjoyed legal rights for many years’ in other countries such as New Zealand, Canada, Australia, and Scotland, the law in England and Wales lags behind. Although there are moves to change this, with the Cohabitation Rights Bill 2017-19 moving its way through Parliament at present, the law offers almost no protection to cohabitees.
Cohabiting couples need to be aware of “common law marriage” myths
There is no such thing as the common law wife. The law in England and Wales does not give couples living together any automatic rights simply by virtue of their relationship no matter how long they have lived together and irrespective of having children together.
Couples that choose to live together without making proper legal arrangements could be left shocked as well as high and dry many years down the line if they wrongly assumed the law will protect their interests.
Couples wishing to buy a home together or if one person moves into the home of their partner, it is strongly recommended to speak to us and receive expert legal advice to safeguard your interests especially if you intend to pay any money towards the upkeep of the property or monthly outgoings and before making any sacrifice to give up your career to look after children that come along.
Cohabiting vs marriage: Six ways your rights differ
- If one cohabiting partner dies without leaving a will, the surviving partner will not automatically inherit anything – unless the couple jointly own property. A married partner on the other hand would inherit all or some of the deceased’s estate
- An unmarried partner who stays at home to look after the children cannot make any claims in their own right for property, maintenance or pension sharing if the relationship breakdown. If a marriage breaks down however, a married homemaker’s role in bringing up the children taking care of the home will be given equal weight to that of the breadwinner.
- Cohabiting partners cannot access their partner’s bank account if they die – whereas married couples may be allowed to withdraw the balance riding the amount is small
- Cohabiting couples are not legally obliged to support each other financially, but married partners have a legal duty to support each other and may have a claim to spousal maintenance for a period of time to adjust and support themselves independently
- If you are the unmarried partner of a tenant, you have no right to stay in accommodation if you are asked to leave – but each married partner has the right to live in the “matrimonial home”.
What is a Cohabitation Agreement?
A Cohabitation Agreement is a contract between two people who are living together in a relationship which falls into the definition of cohabitation. The agreement states each party's rights and responsibilities in relation to the property where they live or intend to live together, financial arrangements between them, both during and following cohabitation and the arrangements to be made if they decide to separate.
Cohabitation is defined as living together in the same household without being married or in a civil partnership and applies to opposite-sex and same-sex couples. The definition of cohabitation does not necessarily mean a romantic relationship (although this is commonly the case). The term can refer to people who have pooled their money together to purchase a property. This is becoming increasingly common as young people look to find creative solutions to get themselves on the housing ladder.
What does a Cohabitation Agreement contain?
Before a Cohabitation Agreement can be drafted, both parties must make a full and frank declaration of their property, assets, income, and liabilities.
The Cohabitation Agreement will state which property is jointly owned and which is to remain separate. For example, both of you may have decided to purchase a car together and register this as joint property. However, you may have a precious collection of vinyl records that hold significant sentimental value to you – in such a case, this can be recorded as separate property.
In addition, a Cohabitation Agreement can stipulate:
- How the household bills will be divided
- Who will occupy the property should you separate (this is vitally important if you have children)
- Financial support arrangements post-separation
- What will happen to any pets
- The circumstances in which the agreement will be varied (for example if you purchase a property to have a baby together)
By instructing us to assist, you can be confident that you will receive objective, independent legal advice before you enter into a Cohabitation Agreement. We will ensure you fully understand the future implications of the agreement on your long-term prosperity. When it comes to drafting a Cohabitation Agreement, we are ruthless in our attention to detail.
Are Cohabitation Agreements legally enforceable?
Historically Cohabitation Agreements were deemed null and void on the basis of public policy in that they promoted sexual relations outside of marriage. Thankfully, attitudes have changed, but there have been no cases which explicitly state a Cohabitation Agreement is legally enforceable.
The Law Commission has stated that Cohabitation Agreements are enforceable in a way that any ordinary contract is upheld by the courts. This means it can also be challenged on the same principles as an ordinary contract, on the grounds of:
- Undue influence
- Illegality on other grounds
We will ensure your Cohabitation Agreement cannot be challenged on such grounds, reducing the scope for the other party to argue the agreement is unenforceable.
What is a Declaration of Trust?
Regardless of whether you have a Cohabitation Agreement, if you legally own property as “tenants in common”, you should enter into a Declaration of Trust. This will ensure the extent of your beneficial interest in the property is recorded and set out as express terms, such as how expenses related to the property will be paid by each of you.
A declaration of trust is a legally binding written agreement which will formally record the financial arrangements agreed between the joint owners of that property.
Couples wishing to live together or couples already living together and unmarried couples should still create a declaration of trust especially if they are buying a property together and contributing differing amounts to the deposit, fees, or mortgage payments. The declaration of trust will clarify the following; the percentage of the deposit each person will pay.
- The percentage of the property each person will own
- How much each owner will contribute towards the mortgage payments
- How much each owner will contribute towards the fees
- What happens if you want to sell the property?
Cohabiting couples should give thought to what would happen to the property if there is a relationship breakdown or if one party simply wants to sell up? You needed declaration of trust to clarify the following;
- What happens if an owner decides to sell their share?
- What proportion of the sale proceeds each owner will receive if the property is sold?
- How any mortgage on the property will be paid off?
- What if you are contributing a larger share of the deposit for the property?
- A declaration of trust will help safeguard and protect your share of the financial contribution you have made in buying the property in the event that you decide to sell your share in the future.
- If you are contributing towards purchase expenses, such as legal fees, stamp duty or removal costs, a declaration of trust can set out your financial contribution and specify very clearly how you wish to be repaid in the event that the property is sold.
- If you are making contributions towards the mortgage on a property in your partner’s sole name, a declaration of trust can set out how you wish to contribute to mortgage payments and how you wish to be repaid for your contribution, should you move out if the relationship ends.
- If you are contributing towards the property maintenance of your partner’s property which is in their sole name only, then any kind of building work such as an extension, loft conversion, new windows, central heating system, new kitchen or bathroom then you need to create a declaration of trust to set out expressly the amount you are financially contributing to the work and how you wish to be repaid in the event of a relationship breakdown resulting in you moving out of their property. If there has been an increase in the value of the property by virtue of any renovations then this increase should be reflected in the amount you both agree should be repaid to you.
- Cohabiting couples should also consider any options for buying out the other’s share in the property. A declaration of trust can specify the terms upon which you transfer the property.
- If you want to avoid prolonged legal disputes over finances if your relationship breaks down than a declaration of trust the only way to set out how the proceeds of sale should be divided between the owners when the property sold.
- Cohabiting couples should create a declaration of trust before purchasing a joint property and it would be sensible to agree all the headings of the agreement before you even start your search for the perfect home.
At Anglo law solicitors we can help you draft your cohabitation agreement and prepare you for the type of questions you need to consider.
Shabana and her team will advise you on entering into a Declaration of Trust. If your relationship has broken down and you believe you are entitled to a share in a property which is registered in your ex-partner’s name, we can represent you in a claim under the Trusts of Land and Appointment of Trustees Act 1996 (known as TOLATA).